By Toby Harnden
PUBLISHED: 17:05 EST, 28 March 2012 | UPDATED: 17:17 EST, 28 March 2012
The Obama administration’s top courtroom lawyer has conceded that President Barack Obama might have made a mistake in pushing through his controversial health care reform but pleaded for voters not judges to decide.
Donald Verrilli, the Solicitor General, who was panned by critics for his halting performance before the United States Supreme Court on Tuesday, virtually pleaded with the justices, five of whom have been openly sceptical about Obamacare, to keep the law.
‘Congress struggled with the issue of how to deal with this profound problem of 40million people without health care for many years, and it made a judgment, and its judgment is one that is, I think, in conformity with lots of experts thought, was the best complex of options to handle this problem,’ he said in closing his case.
‘Maybe they were right, maybe they weren’t, but this is something about which the people of the United States can deliberate and they can vote, and if they think it needs to be changed, they can change it.’
Under pressure: Barack Obama’s signature health care reform could be struck down by the Supreme Court
The justices was pondering whether to throw the Obamacare baby out with the ‘individual mandate’ bathwater as President Obama’s signature achievement appeared in ever graver danger.
After bombarding Obama administration lawyers trying to justify the controversial health care reform, and the law’s opponents, with questions for six hours over three days, the nine justices have now retired to deliberate.
Their decision, due in late June, could turn the presidential election upside down and, if the law is struck off the statute book, imperil Obama’s chances of a second term.
The key issue of the final day of oral arguments was whether Obamacare – formally known as the Patient Protection and Affordable Care Act – would be struck down in its entirety if the central element of the compulsion to buy health insurance, known as the individual mandate, was ruled unconstitutional.
Pleading: Solicitor General Donald Verrilli, right, asked the Supreme Court to let voters decide the fate of the controversial health care reforms known as Obamacare
After Verilli took a battering on Tuesday, veteran court watchers believe that the individual mandate is all but doomed.
The states challenging the health care law contend that the rest of Obamacare must jettisoned if the insurance requirement goes. Paul Clement, a former Bush administration solicitor general, said the individual mandate to obtain insurance or face a penalty was ‘essential to the entire scheme’.
His contention appeared to be shared by several justices. Justice Antonin Scalia, a staunch conservative, said that if the individual mandate was struck down, the entire law must go. ‘My approach would be if you take the heart out of the statute, the statute is gone,’ he said.
Chief Justice John Roberts said the court would have difficulty deciding what Congress really wanted to survive from the law because of the closed-door politicking that went on when lawmakers drew up the legislation.
The law was rammed through when Obama’s Democrats controlled both houses of Congress. Not a single Republican voted for it.
Opponent: Paul Clement, lawyer for the 26 states who are challenging the legality of the reforms
Roberts said it would be virtually impossible to discern the intent of Congress. ‘That’s just an inquiry that you can’t carry out,’ he said.
In another blow to liberals after his intense scepticism on Tuesday, Justice Anthony Kennedy, viewed as the ‘swing’ voter on the court, openly fretted about the huge costs to insurance companies if the individual mandate had to go.
‘We would be exercising the judicial power if one… provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended,’ Kennedy said. ‘By reason of this court, we would have a new regime that Congress did not provide for, did not consider.’
Obama’s health care reform, which he signed into law two years ago, is his crowning domestic policy achievement and was hailed as proof he could succeed in fulfilling a liberal dream when the last Democratic president, Bill Clinton, had failed.
Support: Campaigners on both sides of the debate picketed the court with signs and chanting
Protest: Tea Party members claim the law’s individual mandate is unconstitutional
The law is the most fundamental overhaul of the $2.6trillion U.S. medical system in half a century. It aims to provide health insurance for more than 30 million previously uninsured Americans as well as bringing down health costs.
But critics of the law say it meddles too far into the lives of individuals and the business of the states.
They say that if the federal government can force people to buy health insurance, it would be able to force people to, for example, purchase American-made cars or join health clubs.
Some 26 out of 50 states and a small business trade group have challenged the law in the courts.
Representing them, Clement said: ‘I would respectfully suggest that it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not.’
The final decision on Obamacare is likely to come down to Kennedy and Roberts, who appeared more open than his fellow conservatives to the possibility of the law being upheld. It is the court’s biggest case since it ruled five to four in favour of George W. Bush being the victor of the 2000 presidential election.